Utah’s unusual Supreme Court demand for federal officials to give up public land “plainly lacks merit,” the Biden administration argues, and it defies America’s “deeply embedded traditional way of conducting government.”
The state in August asked the court to consider whether it is unconstitutional for the Bureau of Land Management to own 18.5 million acres of Utah land that is “unappropriated” to parks, monuments or other national sites. In a pricey media campaign, Utah leaders assert the state would manage public lands better.
Now U.S. Solicitor General Elizabeth B. Prelogar has asked the justices to refuse to hear the case, which Utah is asking for rare permission to file directly with the nation’s highest court, rather than starting before a trial judge.
Utah Attorney General Sean Reyes said in August that the BLM’s ownership of the land is “depriving us of significant rights, resources and opportunities.” But Department of Justice attorneys in Prelogar’s office respond that the state’s arguments ignore the Constitution, centuries of history and past Supreme Court rulings.
Utah’s request for the Supreme Court to take its case “is really just for show,” contends Steve Bloch, legal director at the environmental nonprofit Southern Utah Wilderness Alliance. “They’re asking for a radical change that has really sweeping implications for all of the public lands in the West.”
A spokesperson for the Utah Attorney General’s office said that the office usually does not comment on pending litigation.
There are three main reasons why the Supreme Court should turn Utah away, the Biden administration said in its brief.
Utah doesn’t deserve to ‘leapfrog’ lower courts
Utah argues it should get to make its case directly to the justices because it is raising “issues of nationwide importance,” DOJ attorneys wrote.
“But almost all cases that this court hears raise important issues,” their brief reads. “Yet this court usually resolves those cases only after both the district court and the court of appeals have addressed them.”
Utah also argues it should be able to “leapfrog” those courts, they wrote, because its case raises “only a purely legal issue.” The Biden administration disagrees: “That characterization is incorrect.”
While the state alleges that the government is “simply holding” the millions of acres, and isn’t using them to carry out any of the federal powers or responsibilities listed in the Constitution, a court needs to “determine whether that assertion is correct,” the federal attorneys argue.
Usually, trial courts resolve fights over the facts of a case. As an appeals court, the Supreme Court is “poorly suited” to resolve disputes about how the 18.5 million acres are being used, the attorneys wrote.
Utah’s own brief acknowledges that the United States “earns significant revenue” by leasing the lands, for activities from oil and gas production to grazing to commercial filmmaking, they wrote.
The state also points out that the Supreme Court accepted a case it considers comparable: South Carolina’s 1984 challenge to federal taxation of state bonds.
But the Biden administration noted that in taking that case, the Supreme Court emphasized that 24 states supported South Carolina’s argument — while only Idaho, Alaska and Wyoming support Utah’s legal position.
Attorneys general of those same states and others have previously acknowledged that “challenges to the United States’ ownership of public lands in the western states are without foundation,” according to the brief. In one example it included, the Conference of Western Attorneys General concluded in 2016 that Supreme Court rulings “provide little support” for the idea that the federal government “must compel transfer of public lands to the western states.”
Utah can’t get what it wants from this lawsuit
Utah wants the federal government to start “disposing of its unappropriated lands” within its boundaries, according to its brief. But the DOJ argues the Supreme Court can’t order what Utah seeks.
The Constitution gives Congress exclusive authority over public lands, not the Supreme Court, nor any other court, the attorneys wrote. And courts cannot direct Congress to act in a specific way.
So in this case, the government contends, even if the Supreme Court found legal issues with the BLM’s ownership of the “unappropriated” land, the justices couldn’t order Congress to choose the solution of disposing of it.
Congress could opt to reserve or “appropriate” the land for other constitutional purposes, like post offices, national parks or military bases, the attorneys note.
In their campaign, Utah officials say the state “is committed to keeping public lands in public hands.” But if the government chose to dispose of some of the land, the federal attorneys added, Utah doesn’t even claim that it has the right to acquire it — which they argue means the state lacks the legal right, or standing, to file the case.
The Biden administration also contends the United States has legal immunity and can’t be sued for the type of claim Utah is raising — and bringing far too late. The statute of limitations, or deadline, for civil lawsuits is generally six years, the attorneys note.
The United States acquired the 18.5 million acres in question 176 years ago; it’s been 128 years since Utah became a state; and it’s been 48 years since Congress passed the Federal Land Policy and Management Act that Utah is challenging.
Utah’s argument ‘lacks merit’
The Supreme Court has declined to take cases filed directly with it that fail to raise “substantial” claims — and Utah’s position “is insubstantial,” the federal attorneys contend.
The Constitution clearly established federal authority to acquire and either hold or dispose of land, whether or not the government is using it for a specific Constitutional power, they wrote.
“While Congress has the power to dispose of public lands, it does not have to,” the attorneys wrote. “The word ‘power’ encompasses discretion in the exercise of that power. For example, the power to tax is the power to decide whether or not to tax; the power to spend is the power to decide whether or not to spend; and the power to declare war is the power to decide whether or not to go to war.
“In the same way, the power to dispose of property allows Congress to decide whether or not to dispose of federal property.”
The Biden administration urged the Supreme Court to reject other arguments from Utah, including its claim that the government must “equalize levels of federal land ownership across the states.”
Utah has asked for and received an extension of the deadline for its response to the government’s brief. With its reply due Dec. 16, it is likely the Supreme Court will likely not decide whether or not to take up the case until the new year.
